Geoffrey Samuel 160 tacts.Yet the point that needs to be stressed for the purposes of harmonisation is that the difference between law as symbolic knowledge and law as non-symbolic knowledge, the difference between les mots et les choses, raises a question not just about the mentality and methodology of reasoning but also about legal communication and legal education. Howis complexity to be communicated? 6. Ex iure factumoritur The codes, it must be said, are easily assimilated by the mind and thus are easily communicated. Indeed one might say that the history of the civil law, from an epistemological viewpoint, is one of “I’lnvention de symboles cornme moyens de communication particulierement efficaces par leurs qualités de ‘simplicité\ de ‘constructibilité”' . And this is an aspect of the history of legal science that must never be underestimated. But the price of this symbolic (propositional knowledge) dogmatismis that the object of legal science “est simultanement et indissolublement créé et exprimé, pose et connu; le merne mouvement qui livre le droit a la société pour la régir, le donne a sa science pour étre connu”Theresult is that law and legal knowledge become one and the same. Or, fromthe position of a scientia iuris, the law becomes the object of its own science with the result that the institutional system of the codes (persons, things and obligations, actions having been relegated to codes of procedure) becomes both part of the law (real and personal rights) and a scheme by which one analyses (legal science) and has knowledge (legal epistemology) of law. Of course the lack of a completely rigorous set of symbols by which law can be dogmatically represented means that the loss of information and dimension leads directly to a loss of complexity when it comes to the interpretation of natural objects. Damage done by any ‘thing’ {chose) in the possession {sous sa garde) of any person will theoretically give rise to a liability to pay damages under article 1384 of the Code civil. Such a mentality contrasts strongly with that of the common law which refuses on the whole, as we have said, to leave the world of actual objects. One will only be liable for damage done by an escaping thing under the rule in Rylands v Fletcher^^ if the thing itself is analo- “If the claimin the present case is sound, ... it must be sound in every instance of the general situation which 1 have already identified, namely, where Apromises B for reward to performa service for B, in circumstances where it is foreseeable that performance of the sers ice with care will cause C to receive a benefit, and that failure to performit may cause C not to receive that benefit” per Lord Mustill in White vJones [1995] 2 AC 207 at 291. Compare this view with that of Lord Brown-Wilkinson at p. 270: “although the present case is not directly covered by the decided cases, it is legitimate to extend the law to the limited extent proposed using the incremental approach by wav of analogy”. -’•* Delacour, op.cit., pp. 61-62. Atias, op.cit., p. 116. (1866) LR 1 Ex 265; (1868) LR 3 HL 330.
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